January 31, 2017

Would a Justice Hardiman Doom New Jersey's Chances for Sports Betting?

President Donald Trump is set to announce his pick for the open U.S. Supreme Court (SCOTUS) seat this evening on prime time TV. Presumably, Trump will have the three finalists—Third Circuit Judge Thomas Hardiman, Tenth Circuit Judge Neil Gorsuch, and Eleventh Circuit Judge William Pryor, Jr.—engage in a Celebrity Apprentice-style competition where they raise funds for the Trump Foundation while creating marketing campaigns for the Trump hotel chain, all under the watchful eye of Trump's children-judges, Eric, Ivanka, and Don Jr.

Once confirmed by the Senate, President Trump's SCOTUS nominee will unquestionably have an immediate impact on the closely divided Court. But President Trump's SCOTUS pick may impact the Court even prior to confirmation of the nominee by affecting how the Court chooses cases to fill its docket for the remainder of the current Term and the beginning of the next Term. If the Court feels it is likely the new justice will be joining the Court yet this Term, the Court may well take up important cases (grant certiorari or "cert") where the current Court is likely closely divided, on the premise that the new justice will be available to serve as a decisive vote if needed. In other cases where the Court is uncertain whether to take a case, the Court may hold the case pending addition of the new justice before making a final decision as to whether to grant cert.

Two key cases which may feel the immediate effects of Trump's SCOTUS nomination are Christie v. NCAAand New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA(collectively "Christie II"), the linked cases by which New Jersey is challenging the constitutionality of the Professional and Amateur Sports Protection Act ("PASPA"), the federal statute which bars states from authorizing legal sports betting (except for Nevada and a couple of other "grandfathered" states). New Jersey has been on a multi-year losing streak in court tilting at PASPA and the sports betting windmill. In 2013-14, the state challenged the law, losing in federal district court, losing before a three-judge panel in the Third Circuit Court of Appeals, and being rejected by SCOTUS which denied cert. Undeterred, New Jersey came right back with a new law and "new" (or repackaged) legal arguments in late 2014. Since then, the state has run its record to a Cleveland Browns-esque 0-6, adding new losses before the federal district court, a new three-judge panel in the Third Circuit Court of Appeals, and a full twelve-judge en banc panel of the Third Circuit.

New Jersey is once again appealing to SCOTUS, and this time, SCOTUS has thrown New Jersey a bit of a lifeline. In a recent order, the Court requested the views of the Solicitor General as to whether the Court should grant cert. Of course, with the recent change in Administrations, it will take some time for a new Attorney General and Solicitor General to be appointed by President Trump and confirmed by the Senate. So it remains to be seen whether the Department of Justice will continue to strongly defend PASPA against New Jersey's attacks. But the views of the Solicitor General may all be academic if President Trump nominates Judge Hardiman to SCOTUS.

I. Justice Hardiman would be recused from Christie II, making it more likely the Court would reach a split decision, thus making it less likely the Court would grant cert. Because Judge Hardiman participated in the Third Circuit en banc panel and joined the majority opinion in Christie II, as a SCOTUS Justice he would almost certainly recuse himself from considering any action with respect to Christie II before SCOTUS. This would include both the decision whether to grant cert and, if cert is granted, consideration of the merits of the case.

So, if Trump nominates Judge Hardiman for the Court, the current Court will have to decide whether to grant cert without his vote. Worse, the Court will also have to consider the case with only eight justices participating. Those justices tend to be closely divided, particularly on issues of ideological doctrine; as will be discussed below, commandeering is one such issue potentially dividing the Court on liberal-conservative lines. This potential for ideological divide, of course, raises the specter of a tied decision, a result SCOTUS abhors (the Court takes cases primarily to resolve major legal disputes). Added to other factors weighing against a grant of cert—the lack of a circuit split, the fact the Court previously passed on this same case with essentially the same commandeering argument—the potential for a tied decision might be the final straw in a decision to deny cert.

II. New Jersey almost certainly needs the vote of the new justice to prevail. New Jersey's challenge to PASPA rests on a constitutional theory known as commandeering—the idea that there are limits on the ability of the federal government to directly or indirectly force states to implement federal policy prerogatives. It's a doctrine which has been rarely invoked, and it is even rarer for the Court to find there has been unconstitutional commandeering. In fact, the Court has only struck down two laws on commandeering grounds. In 1992, in New York v. United States, the Court struck down a federal law requiring states either to regulate nuclear waste or to take title to the waste. And in 1997, in Printz v. United States, the Court found that the Brady Handgun Violence Prevention Act unconstitutionally required local and state law enforcement officials to implement federal gun policy by requiring local and state officials to perform background checks required by federal law. That's it—that's the whole enchilada of wins for commandeering at SCOTUS.

Because commandeering as a constitutional doctrine sounds in Tenth Amendment states' rights theory, commandeering is, or at least has been to date, a conservative judicial doctrine (conservatives tend to believe in strong state sovereignty while liberals tend to believe in strong federal sovereignty). Right now, SCOTUS is in a 4-4 conservative-liberal deadlock. The Court's most recent commandeering decision, Printz, was a 5-4 decision. Two of the justices in the majority in Printz—Thomas and Kennedy—remain on the Court today as part of the Court's conservative bloc (they were also in the 6-3 majority in the earlier New York commandeering decision) . Two of the dissenting justices in Printz—Ginsburg and Breyer—remain on the Court today as anchors for the liberal bloc. Justice Scalia, whose seat is being filled by President Trump, wrote the Printz majority decision.

Against this backdrop, it is difficult to see how New Jersey can find five votes out of the current eight SCOTUS justices. Although Chief Justice Roberts, and Justices Thomas, Kennedy, and Alito are likely at least sympathetic to a commandeering argument, it is difficult to imagine any of the four liberal justices—Ginsburg, Breyer, Sotomayor, or Kagan—jumping sides and providing a fifth vote for New Jersey (although Justice Kagan might change sides and provide a sixth vote if the cause is already lost, out of a concern for the Court's reputation and for strategic reasons). Of course, this assumes New Jersey can rally the votes of the four current conservative justices; PASPA is a bit of a black swan statute, and with gambling as its core topic, it's not guaranteed to be an attractive vehicle for conservatives to expand the commandeering case law. Recall that this current Court lineup with Justice Scalia already rejected consideration of nearly identical arguments in Christie I. And Judge Hardiman, viewed by most Republicans as sufficiently conservative to replace Justice Scalia, has already weighed in on New Jersey's PASPA challenge and found it lacking. So New Jersey's PASPA challenge is no slam dunk even with the Court's current conservative justices.

Given the potential votes in play, it seems likely New Jersey's best chance for prevailing requires it to pick up the vote of whatever new conservative justice is appointed by President Trump. But, if Judge Hardiman is the nominee, he will be forced to recuse himself from the case. And if Judge Hardiman is recused, New Jersey likely remains one vote shy of victory on the merits even if the state can get the four votes it needs for the Court to grant cert.

III. Justice Hardiman would likely be a vote against future PASPA challenges.

Finally, playing the hypothetical forward, let's assume Judge Hardiman is appointed to SCOTUS, and the Court declines to hear the Christie II challenge with new Justice Hardman recused. The next litigation avenue could be for New Jerey to pass another sports betting statute and mount a new court challenge to PASPA, though this fight would be uphill against the Third Circuit's decision in Christie II. A more plausible course might be for another state in a different circuit to attempt to legalize sports betting; New York and Mississippi seem likely candidates, though more states are beginning to look at the issue. These states could then bring court actions challenging PASPA in front of different Circuit Courts of Appeal not bound by Christie II, hoping to create a circuit split and force SCOTUS to confront and resolve the conflicting decisions.

And waiting there for the challengers as the likely decisive swing vote will be Justice Hardiman, who would be the sole supreme court justice to have previously wrestled with the issue of PASPA and commandeering, and found PASPA to be a valid exercise of federal authority.

New Jersey and any other states wanting to expand legalized sports betting better root for Judge Gorsuch to be the new SCOTUS nominee.